FORMER Eskom chief executive Matshela Koko wants the North Gauteng High Court to give him a chance to clear his name and revoke the order made earlier this year.
The high court declared a controversial contract for work at Kusile power station that multinational ABB for Eskom unlawful and invalid.
This was after the Special Investigating Unit (SIU), Eskom, and ABB went to court seeking to nullify the contract and replace it with a new one.
Koko, who entered as an intervening party, said the court order was in response to allegations of criminal conduct against him, adding that this heavily impacted the ruling.
He said this indicated that he was directly implicated in the reasons for the court order that was issued on April 5.
He said the order was based on the allegations against him without allowing him to present his defence.
This, according to his papers, was a breach of the “audi alteram partem rule”.
“My conduct is central to the alleged criminal conduct referred to as the "Koko process," “Leago Scheme,” and “Impulse Scheme,” which is the foundation of the court's decision to declare the contract and related agreements unlawful and invalid,” read the papers.
Koko said the allegations had already affected his reputation, and a decision that upholds them would further damage it, reinforcing the perception that he engaged in corrupt or illegal activities.
In October 2022, Koko and seven other people, including members of his family, were arrested on corruption charges relating to the contract. He was accused of soliciting bribes from ABB, which received lucrative contracts at Kusile.
He was set free a year later, and the court ruled that there was an unreasonable delay on the side of the state to proceed with the trial.
Koko said he had an opportunity to defend himself against these allegations.
He warned that if the court affirms the decision to declare the contract unlawful and invalid based solely on allegations of criminal conduct against him—without considering his perspective—it would validate those misconduct claims. He added that this would reinforce the erroneous perception of his involvement in illegal activities.
“Conversely, if I am allowed to intervene and successfully defend myself, the court may reconsider the basis of its decision, potentially leading to a different outcome that does not implicate me in wrongdoing.
The findings in the review proceedings could influence any future legal actions or investigations. A decision that upholds the allegations could lead to civil claims for damages,” the papers further read.
He said a favourable outcome in the review proceedings could deter further legal actions against him, adding that it would undermine the foundation of the allegations.
Koko said the claim that he had nothing to defend in these review proceedings was inaccurate. He said his reference to the need to present his defence presupposed that the court order had an impact on him.
He said this qualifies as direct and substantial.
“Given that the criminal case against me was struck off the roll and I have no other legal forum to defend myself, it is crucial that I be allowed to intervene in the review proceedings,” said Koko, adding that this would ensure that he can present his version and protect himself against the allegations made against him by the SIU, Eskom, and ABB.
He said this would serve the interests of justice and provide a fair determination of issues.
“Therefore, the court should grant me an application for leave to intervene,” Koko said.
He said if the review proceedings are concluded without allowing me to intervene and present his defence, it would similarly breach the audi “rule”. Koko added that this decision would be challenged as it fails to consider all relevant parties’ input and lacks a foundation of thorough and justifiable information.
Koko said while the SIU, Eskom, and ABB maintained that the court order was based on broader concerns about the procurement process, legal and procedural issues, and independent forensic reports, a detailed analysis of their founding affidavit revealed that this assertion was not accurate.
This is part of Koko’s fight against the three parties. He declared war against them after his corruption case was struck off the roll.
manyane.manyane@inl.co.za
loyiso.sidimba@inl.co.za